R v Ryan Barton

The appellant is now 39. On 5 July 2024 in the Crown Court at Reading, he pleaded guilty to one offence of stalking. On 13 September 2024, at the same court, he was sentenced by HHJ Amjad Nawaz ("the judge") to a community order for 24 months with various requirements. The judge also ordered that the appellant be deprived of his mobile phone following the downloading and provision to the appellant of any relevant private material.

He appeals only against the deprivation order in respect of the phone by leave of the single judge. That is the extent of this appeal. In those circumstances it is unnecessary to set out in detail the particulars of the stalking offence. Suffice it to say, that it involved a woman with whom the appellant had been in a relationship. The offending occurred between 14 February 2024 and 21 March 2024 and was particularly persistent and prolonged. One aspect of the appellant's ruthless stalking of the complainant was the numerous abusive messages that he sent her from his mobile phone, together with intimate photographs of the complainant taken during their relationship.

It appears that, at the sentencing hearing, the Crown notified Mr Kimsey (the appellant's counsel) that they intended to seek a deprivation order in respect of the phone. When prosecuting counsel made the application after the principal part of the sentencing exercise, the judge said, "Yes, well he used that item in the commission of the offences" and the judge said he would therefore order the destruction of the phone. Although at that point the appellant, who was attending by way of video link, indicated that he wanted to say something, since he was represented by Mr Kimsey, the judge said that he could not.

Mr Kimsey said then:

The point that is taken on appeal is that the judge granted the deprivation order without hearing any representations from the defence. It is said that this was a breach of section 155 of the Sentencing Act. When granting permission to appeal the single judge said it was arguable that the deprivation order did not receive the consideration it needed at the hearing and its terms may have had a disproportionate or unintended impact on the appellant.

Section 155 of the Sentencing Act provides as follows:

It is submitted that, by proceeding to impose the deprivation order without allowing the appellant to provide any instructions and without hearing representations from the defence, the judge failed to comply with section 155 and as a result a material irregularity occurred. It is submitted that the court made the order without properly assessing impact of the depravation of the phone.

In our view, on a proper analysis of what actually happened, there was no material irregularity and no basis for interfering with or appealing the judge's order.

Prosecuting counsel informed Mr Kimsey before the hearing started that they would be seeking a deprivation order in relation to the mobile phone. In a case of this sort, where a mobile phone has been used to perpetrate much of the offending that makes up the stalking count, such an order is routine. The Crown is not required to give some lengthy period of notice of the making of such an application. In our view, the defence should have been aware of the likelihood of such an application from the outset.

In any event, Mr Kimsey was aware that the application for a deprivation order was going to be made at the start of the hearing. If he had any concerns about that aspect of the hearing he could and should have sought an adjournment, so as to allow himself the , opportunity of taking instructions from the appellant. He did not do so, presumably because it was not a matter that struck him as being of any great significance.

Importantly, however, it cannot be said that the judge in anyway prevented submissions being made by Mr Kimsey on the application for a deprivation order. It is plain from the transcript that what the judge was doing was making the fair point that the appellant himself could not make representations to him directly, but that was because he was represented by counsel. The judge certainly did not prevent counsel from making submissions on the application. We have set out some of the exchanges above. Mr Kimsey properly accepted the principle of forfeiture and destruction of the phone but was concerned to ensure that any material that the appellant wished to preserve (and that was private to him) could be separated and downloaded. The judge agreed. In those circumstances, there was no material irregularity.

The second fundamental problem with this appeal is that there was no evidence before the judge as to any "other effects" on the appellant as a result of the order, as required by section 155. We go back again to the transcript of what happened. At the end of the hearing Mr Kimsey made it plain that he wanted to have a conference with the appellant about the deprivation order, and the judge acceded to that, telling the appellant to stay where he was so as to allow that to happen. There was then this exchange:

This exchange makes it clear that the judge had well in mind that the appellant was entitled, if it was possible, to separate off personal such as contact from the phone. The judge was right to say that he would not enter into a debate about the detail of what could or could not be downloaded to another device. Questions of that sort were not primarily a matter for the judge but an administrative matter to be sorted out by Mr Kimsey and the officer. There was therefore nothing else the judge could or should have done.

The third problem with this appeal is that, even now, there is no evidence before us that there were any particular effects on the appellant that made the usual deprivation order unfair or unjust. Mr Kimsey's advice on appeal, which we have read, is entirely silent on that point. As we have said, there was a reference at the original hearing to a two-step verification on the phone. But there is no evidence before us that this could not be downloaded to a new phone, or somehow replicated on a new phone. There is no evidence before us that the appellant could not have the two-step verification on his new mobile phone.

Standing back, it is quite clear to us that what should have happened was this. Mr Kimsey ought to have spoken to the officer, and they ought to have sorted out then and there what could and could not be downloaded. If there were any difficulties in that process, it would have been open to Mr Kimsey to go back to the judge, so that he could have given clarification as to the precise terms of the deprivation order. Indeed, even if that could not have been sorted out on the day, that could have been arranged subsequently under the slip rule. It does not appear that any of those things happened.

This morning, having had a telephone conversation with the appellant (who is in custody for other matters), there was a suggestion that at some point there were discussions with the police after the hearing, but they were not very helpful. But there is no evidence of any of that before this Court, so it is not a matter that we can take into account.

We do not think that the single judge was given the full information when he gave permission to appeal. Had he been, we are confident that permission would not have been granted. Either way, for the reasons that we have given, we consider that this appeal is misconceived. The unsubstantiated complaint is not a matter for this Court. Accordingly, we can do nothing else but dismiss this appeal against the deprivation order that the judge made.